Singh v Attorney General et Al

• Jurisdiction: Trinidad & Tobago
• Judge: Bereaux, J.
• Judgment Date: 04 December 2001
• Neutral Citation: TT 2001 HC 160
• Docket Number: H.C.A. No. S-395 of 2001
• Court: High Court (Trinidad and Tobago)
• Date: 04 December 2001

High Court

Bereaux, J.

H.C.A. No. S-395 of 2001

Singh

and

Attorney General et al

Appearances:

A. Newman Q.C., S. Persad, P. Ramadhar, S. Gopaul Gosine and R. Rajcoomar for the applicant.

G Strachan Q C, B Busby and A Darmanie for 1st respondent.

Mr. Small, R Armour and D Mendes for 2nd respondent

Constitutional law - Fundamental rights and freedoms — Applicant, a former Minister, was charged with corruptly receiving money while being a Minister of Government and with murder — D.P.P. discontinued charges against a co-accused and granted conditional immunity from prosecution — Whether applicant's rights under s. 4(a) of Constitution was infringed if he was convicted on evidence of an accomplice who had been granted a conditional immunity.

Constitutional law - Director of Public Prosecutions — Powers — Applicant, a former Minister was charged with corruptly receiving money while being a Minister of Government and with murder — D.P.P. discontinued the charges against a co-accused granted him immunity from prosecution subject to four conditions — Whether the D.P.P. had the power to grant a witness immunity from prosecution — Whether the applicant's constitutional rights were being infringed by the Director of Prosecution's consent for corruption charges to be proceeded with against him.

Bereaux, J.

THE HISTORY

1 On 17Ih January 2001, the applicant, Mr. Dhanraj Singly a former Minister of Local Government was charged with twenty-seven offences under sections three and nine of the Prevention of Corruption Act No. 11 of 1987. By the twenty-seven informations laid against him, Mr. Singh is charged with either corruptly soliciting or corruptly receiving, while being the Minister of Local Government, various sums of money from Karamchand Rampersad, as an inducement or reward to ensure that Mr. Rampersad, a contractor who had supplied certain goods and services to the Government of Trinidad and Tobago, was paid by the Government of Trinidad and Tobago for the goods ‘and services supplied.

2 A little over one month later, on 19th February, 2001, Mr. Singh was charged with murdering one Hansraj Sumairsingh who was shot and killed on December 31, 1999. In both cases the charges were laid at the direction of Mark Mohammed, the Director of Public Prosecutions after he reviewed, inter alia, statements from accomplices to the crimes. In case of the corruption charges, the Director had considered a statutory declaration made by Karamchand Rampersad. With respect to the murder charge, the Director considered a statement from one Elliott Hypolite which had been recorded under caution.

3 Mr. Hypolite also had been charged for the murder of Mr. Sumairsingh. That charge was formally discontinued by the Director who also granted to Mr. Hypolite, immunity from prosecution subject to four conditions. In granting the immunity from prosecution the Director purported to act pursuant to his powers under section 90 of the Constitution of the Republic of Trinidad and Tobago “and all the powers in that behalf enabling.”

4 The formal grant expressly provides that the immunity may be withdrawn in the event of a deliberate breach of any of the four conditions.

5 In the case of the corruption charges against Mr. Singly no immunity has been granted to Mr. Karamchanad Rampersad but the Director has expressed, by affidavit, his intention to grant one.

6 By these two constitutional motions Mr. Singh (“the applicant”) has challenged the power of the Director to grant immunity to Mr. Hypolite and Mr. Rampersad. That is the common ground between them which has caused me to hear both actions simultaneously.

7 There are, however, areas of divergence.

THE MURDER MOTION

8 HCA No. 395 of 2001, (“the murder motion”) was filed on 27th March, 2001. The applicant now seeks two declarations, in the following terms:

• (1) that his right to liberty and security of person and the right not to be deprived thereof except by due process of law and his right to the protection of the law guaranteed to him by section 4(a) and (b) are being or likely to be contravened by the Director's decision on 22nd February, 2001 to grant immunity from prosecution to Elliott Hypolite subject to the condition that he testify against the applicant.

• (2) a declaration that his right to liberty and security of the person and the right not to be deprived thereof except by due process of law; his right to the protection of the law and his right to respect for his private and family life, guaranteed to him, by sections 4(a), 4(b) and 4(c) of the Constitution of Trinidad and Tobago are being or likely to be contravened by the actions of police officers under the control of the Commissioner of Police in procuring the applicant's arrest and prosecution upon the charge of murdering Hansraj Sumairsingh, when their true purpose for the same was, by means of such proceedings, to place improper pressure upon the applicant to implicate Government ministers in the commission of crimes by assuring the applicant that if the applicant co-operated, the police officers would ensure that the charge was dropped.

• (3) a stay of the murder proceedings.

• (4) such further or other relief as may be appropriate.

9 A third declaration relating to the disclosure of unused material in the Prosecution's possession was not pursued.

10 The first declaration sought is set out in paragraph one of the notice of motion. Except for its reference to Eliott Hypolite, it is identical to the declaration sought in HCA No. 475 of 2001 (“the corruption motion”) at paragraph 3.

11 The grounds of the murder motion are:

• (1) that upon a proper interpretation of section 90 of the Constitution, the Director of Public Prosecutions does not have the power to grant a witness immunity from prosecution (whether conditional or otherwise). At any stage prior to judgment he may discontinue criminal proceedings against any person, but such discontinuance does not operate as a bar to future prosecution.

• (2) that the powers of the Director of Public Prosecutions under section 90 of the Constitution are subject to section 76(2) of the Constitution. Under section 76(2) the Attorney General is vested with responsibility for the administration of legal affairs in Trinidad and Tobago. A decision to grant immunity to a self-confessed accomplice to murder raises a serious issue of policy and requires that such decision be referred to, and taken by the Attorney-General. Before any decision to grant immunity is taken by the Attorney General, he has a duty to acquaint himself with all relevant material. A failure to do so would amount to a dereliction of his responsibility for the administration of legal affairs in Trinidad and Tobago.

• (3) that under section 87 of the Constitution the President is vested with power to grant a pardon, which he may exercise conditionally: Attorney General for Trinidad and Tobago v. Lennox Phillip [1995] 1 A.C. 396. In the absence of a parallel power to grant an immunity from prosecution being expressly granted to the Director of Public Prosecutions by the Constitution, no such power vests in him.

• (4) that it will always amount to an infringement of a defendant's rights under sections 4(a) and/or 4(b) of the Constitution to seek to secure his conviction on the evidence of an accomplice who has been granted a conditional immunity, where one of the conditions is that such immunity may be withdrawn if the accomplice fails to testify. This is particularly the case where the penalty upon conviction is capital punishment: R v. Turner (1975) 61 Cr App R 67.

• (5) The circumstances set out in the affidavits of the applicant and in the affidavits of Sheila Roopnarine Singh, Indira Roopnarine Singh and Leela Singh indicate that the arrest of the applicant was effected for an ulterior motive, namely to secure charges against former fellow Ministers of the Government of which the applicant had been a member. The circumstances alleged amount to a flagrant abuse of process by the police officers involved. Such abuse of process amounts to a clear contravention of the applicant's right not to be deprived of his liberty except by due process of law, to the protection of the law, and to respect for his family life contrary to sections 4(a), 4(b) and 4(c) of the Constitution. In such circumstances, the rule of law is challenged, and it would be appropriate for the court to maintain the rule of law by staying the prosecution of the charge against the applicant: R v. Horseferry Road Magistrates Court ex parte Bennett [1994] 1 A.C. 42; R v. Mullen (1999) 2 Cr App R 143; R v. Beckford (1996) 1 Cr App R 94.

12 Ground six of the motion is no longer in issue, the relevant disclosures having been agreed during the course of trial. A stay of the preliminary enquiry into the murder charge was granted by Ventour, J. by way of a consent order on or about 4th April, 2001.

13 Six affidavits were filed on behalf of the applicant. In chronological order they are:

• (1) Affidavit of Dhanraj Singh filed on 27th March, 2001.

• (2) Affidavit of Sunil Gopaul Gosine filed on 27th March, 2001.

• (3) Affidavit of Sheila Roopnarine Singh filed on 27th March, 2001.

• (4) Affidavit of Leela Singh filed on 27th March, 2001.

• (5) Affidavit of Indira Roopnarine Singh filed on 27th March, 2001.

• (6) A supplemental affidavit of Sunil Gopaul Gosine filed on 28th March, 2001 attaching the notes of instructing attorney attending proceedings in the preliminary inquiry into the charges of murder of Mr. Sumairsingh

14 In reply, six affidavits were filed on behalf of the Director. They are:

• (1) Affidavit of Mark Mohammed, Director of Public Prosecutions, filed on 28th May, 2001.

• (2) James Philbert, Senior Superintendent of Police in charge of Homicide Bureau, filed on 5th June, 2001.

• (3) Affidavit of Mark Hernandez, Special Reserve Police Officer, filed on 5th June,...